The Rights of Way Law

Public Rights of Way: Definitions

The most widely known right to cross private land is known as a 'right of way'. If this is a right granted to everyone it is a 'public right of way'. There are several types of 'way' and together they are called 'highways'. Although in normal language a highway is often considered to be a major road (probably because of this common meaning in America) the proper sense of this word can refer to the smallest footpath as well as the biggest motorway.

Rights of way can be on any land, including privately owned land. Landowners have the right to allow other uses of a highway they own or control, so for example they can drive a tractor along a footpath on their own land, or allow someone else to do so. The use of a public right of way may be temporarily or permanently restricted by a Traffic Regulation Order issued by a highway authority. These often restrict use by motor vehicles, but sometimes might restrict use of a path at certain times, or by certain types of user such as cyclists. There will normally be a sign informing users of any such restrictions.

Footpath
If the path is used for walking only, it is a footpath. This is different from the pavement alongside a road, in that it means the whole width of the highway. Footpaths are usually just tracks, and are rarely surfaced or lit.

Bridleway
Bridleways are also footpaths, but additionally users are permitted to ride or lead a horse, and ride bicycles. Horse drawn vehicles are not allowed. This may not include other animals, although a donkey or mule is classed as a horse for these purposes. Cyclists must give way to pedestrians and horseriders. Motorcycling is not allowed. Bridleways are not necessarily surfaced, and because of this a well used bridleway can sometimes be effectively impassable for pedestrians.

Byway open to all traffic (BOAT)
BOATs allow the use of wheeled vehicles of all kinds, but the highway is normally used for walking or horse riding. Driving of off-road type vehicles for recreational purposes often happens along such highways. Again they are not surfaced, and can get very wet and muddy for obvious reasons.

Road used as a public path (RUPP)

Some highways are still legally classified as a RUPP, which is a very vague definition. Most of these are being reclassified as BOATs or other highways, but this process will go on for many years yet. Meanwhile their status remains ambiguous, and probably local custom is the best indication of what you can and cannot do.

Restricted Byway
A category of right of way created under the Countryside and Rights of Way Act 2000. A restricted byway allows a right of way on foot, on horseback, or leading a horse, cycling and for any vehicles other than mechanically propelled vehicles.

Green Lane
This definition has no legal status. It usually refers to a BOAT or RUPP, but in some cases a road called a green lane may have no right of way along it at all.

Permissive Path
It is possible for landowners to allow access over their land without dedicating a right of way. These accesses are called permissive paths. To the user they are often indistinguishable from normal highways, but there are some important differences.

A permissive path must have some sign or similar indication that it is not intended to be a right of way
The landowner can close off or divert the path if they wish to do so, without any legal process being involved
The landowner can make restrictions which would not normally apply to highways, for example to allow horse riding but not cycling, or the other way around.
Permissive paths are commonly found on land owned by a body which allows public access, such as a local authority, a Railway Authority, or the National Trust.

Pavement or Footway
When a highway has separate areas for vehicles and pedestrians, which most people would call the 'road' and the 'pavement', these areas are known in official circles as the 'carriageway' and the 'footway'.

Pavements are simply part of the highway which they go alongside, and do not have any separate legal existence. So normally they are not considered as paths in their own right, although there are often other pathways in built up areas which may be public rights of way, and sometimes other rights of way (e.g. a footpath) can go along a pavement - this is often where a new road has been built across or along an existing, older, right of way.

Common law ensures the right to pass along any highway, and in the case of pavements (paths alongside vehicular roads, usually in urban or suburban areas) the pavement is usually included in the highway. This means that it is an offence to obstruct a pavement. However, it does not mean that users can cycle or drive on the pavement, unless there are special measures to allow this (e.g. a designated cycle route).

Confusingly, to a highway engineer, the term 'pavement' refers to the whole of the paved area, so the carriageway is the main area of pavement, and the footway may or may not be classed as pavement depending on whether or not it is surfaced.

Rights of Way : Definitive Maps
The information in this section is based on "A Guide to Definitive Map Procedures" available from the Countryside Agency. This booklet is free. The web version was partly copied from a page by Mike Cattell (no longer online that we can find).

What is a definitive map?
What is the definitive statement
When is the 'relevant date'
Which Councils are Surveying Authorities?
How can I see the definitive map?
Categories of Right of Way shown on the Definitive Map
How is a Right of Way created?
Reclassification of roads used as public paths
Changing the Definitive Map and Statements
Discovering Lost Ways - the cut-off date for registering new rights of way under the CRoW Act 2000

What is a definitive map?
A definitive map is a map prepared by a surveying authority which is a legal record of the public's rights of way in one of four categories (footpath, bridleway, road used as a public path or byway open to all traffic). If a way is shown on the map, then that is legal, or conclusive, evidence that the public had those rights along the way at the relevant date of the map (and has them still, unless there has been a legally authorised change). But the reverse is not true. So the showing of a way as a footpath does not prove that there are not, for example, additional unrecorded rights for horseriders to use the way. Nor is the fact that a way is not shown at all on the definitive map proof that the public has no rights over it.

The definitive map is therefore useful in providing evidence of the public's rights, but may not tell the whole story. A check should be made with the surveying authority to see if it has reason to believe that there are additional rights, as yet unrecorded, over any particular area of land. This can be especially important if the land is for sale or is the subject of a planning application for development.

Definitive maps have to be compiled for all of England (and Wales) except the 12 inner London boroughs.

The definitive statement
The map is accompanied by a statement which describes each right of way in greater or lesser detail. If the statement defines the position or width of a right of way shown on the map, then that information is conclusive evidence of the position or width of the public's right of way at the relevant date. Similarly, if the statement contains details of any limitation or condition attached to the public's rights, then that too is conclusive evidence of the existence of such a limitation or condition at the relevant date. As with the definitive map, there may be additional limitations or conditions on the public's rights, as yet unrecorded.

The 'relevant date'
Each definitive map and statement has a 'relevant date'. The evidence that the map provides of the existence of public rights is evidence that they existed at that date. lt is possible that a legal change, for example the diversion of a way, has happened since the relevant date. Needless to say, the longer ago the 'relevant date', the more likely it is that this has happened. In such a case the definitive map and statement should have been amended by order and the change will have its own, later, relevant date. Details of the change should be available for public inspection with the map and statement. If you are in doubt about whether, or how, the map and statement have been changed in this way, please ask the surveying authority for further information.

Which Councils are Surveying Authorities?
The surveying authority is usually the county council or metropolitan district council for the area. In some counties, district councils act as agents for the county council, but the responsibility remains with the county council. In Greater London the surveying authority is the London borough council, although the twelve inner London borough councils and the City of London do not have to have a definitive map. In those areas where unitary authorities have been created, the unitary authority is also the surveying authority.

How can I find out which ways are included on the definitive map?
The map and statement must be available for the public to inspect free of charge at all reasonable hours. A telephone call to the surveying authority will tell you in which office you will find the map. In addition, in each district in a county there must be available for inspection a copy of at least that part of the map and statement which covers the district, and the orders which have amended it: this will often be available at the district council offices. Furthermore, parish councils normally have a copy of that part of the map and statement which covers their parish.

Some libraries have copies of definitive maps and statements for inspection.

Finally, the definitive maps are used by Ordnance Survey to provide the rights of way information that is shown on Landranger (1:50,000 scale) maps (in red) and Pathfinder and Outdoor Leisure (1:25,000) maps (in green). However, in case of dispute, reference should be made to the definitive map rather than the Ordnance Survey map, which cannot in itself provide conclusive evidence.

The Countryside and Rights of Way Act 2000

The following article summarising the provisions of the Act is reproduced (with some amendments and updates) by kind permission of the author, Helen Slade, formerly AONB Officer for the Isle of Wight AONB.

Note: The article is directly relevant to England and Wales only. It refers to the Countryside Agency in many instances but in parts of the UK outside England other bodies may have the same or a similar responsibility. In Wales this is CCW.

The text of the act can be found here: Countryside and Rights of Way Act. You will also need to read the Explanatory Notes. We also recommend the DETR Fact Sheets.

www.countrysideaccess.gov.uk is the government website for online public maps of access land and public information about the new right of access. The online maps also contain up-to-date information of any restrictions or closures). This website also contains detailed of the new Countryside Code and general information and helpful advice on enjoying access to the countryside.

www.openaccess.gov.uk is the government website for information about CROW for land managers.

Links to sections explaining main sections of the Act:

Access to Open Country

Public Rights of Way

Nature Conservation

Areas of Outstanding Natural Beauty

INTRODUCTION
This article seeks to give an overview of the legislation, giving particular emphasis on the implications for the management of Areas of Outstanding Beauty.

In 1999 the government proposed a new right of access for those on foot to certain types of land. This is often known as 'The Right to Roam' although this title is not official and can be somewhat misleading. A statement of the Government's access proposals was published in March 1999, entitled Access to the Countryside in England & Wales: The Government's Framework for Action. The framework was developed in the light of responses to the public consultation paper, Access to the Open Countryside in England & Wales, published in February 1998, and the results of a study of the economic, environmental and social benefits and costs of different approaches for improving access to open countryside.

The Act received Royal Assent on 30 November 2000 and covers four main areas of interest; Access to Open Country, Public Rights of Way, Nature Conservation and Areas of Outstanding Natural Beauty. The Act itself is accompanied by Explanatory Notes, and there is also a DETR Countryside and Rights of Way Act 2000 Circular 04-2001-02-02. Some of the provisions came into force on 30th January 2001, others on 1st April 2001, and other parts of the Act become effective over a period of a few years. It is a complicated piece of legislation, not made any easier by the large amount of it which has to be enacted through regulations yet to be written.
The Act sets out a number of new duties and powers available to a variety of bodies, all of which will require some additional resources, whether it is a question of time, manpower or money. Some new money is being made available from the Government to Local Authorities via the Standard Spending Assessment, but the amount available overall is the subject of debate and a certain amount of confusion. The extra money for AONBs is being channelled through the Countryside Agency/CCW.

The purpose of the Act is to create a new statutory right of access on foot to certain types of open land, to modernise the public rights of way system, to strengthen nature conservation legislation, and to facilitate better management of AONBs. There are provisions for local authorities to establish byelaws and give greater powers of enforcement to a variety of relevant bodies. It seeks to balance the new rights with responsibilities on all parties and there will be codes of practice produced to explain these to landowners and users. In addition, guidance will be produced to assist local authorities and other relevant bodies in administering the procedures.

Access to Countryside
This part of the Act is presently being implemented, and there are regular changes to the position, and variations from region to region. To find out more visit the Countryside Agency Access website

The Act provides for a new right of access on foot to areas of open land comprising

mountain (land over 600 metres)

moorland

heath

downland

registered common land

There are provisions to consider extending the right to coastal land, but not woodland despite some early publicity suggesting this.

There are various restrictions, and definitions which place certain limits on the right of access, and the rights do not come totally into effect until the mapping exercise is completed, estimated to be late 2004. Most of the responsibility for identifying, mapping and administering the process of managing the new rights falls to the Countryside Agency (in England), the Countryside Council for Wales, (in Wales), assisted in part by the National Park Authorities. Although there are powers available to Local Authorities, there are no duties for them in respect of Open Access. However, there are several powers for the access authority (which outside National Parks is the local highway authority) and these are likely to become an issue for debate amongst the Local Access Fora which must also be set up, under the provisions of the Act, by the access authority.

Before the open access becomes generally available, the Countryside Agency (in England) has to carry out an extensive mapping exercise to clearly identify all the qualifying land, and clarifying the type of access land. Pilot studies are being carried out in two areas of the country and based on these experiences, the rest of the country will be mapped on a rolling programme. The process allows for appeals in two stages, and is estimated, by the Agency, to be completed in late 2004. The rights of access may correspondingly be introduced in a sequential manner, although this has not yet been decided. Once the final (conclusive) maps have been prepared and published, they will be subject to review every ten years, although that period my be changed by regulation. In fact, throughout the Act, there are numerous matters which have yet to be actioned because they require regulations to be drawn up, and this makes the already complex legislation even more difficult to interpret, evaluate and administer.

There are a number of specific actions, both on the part of landowners and users, which will constitute offences, and the access authority can also make byelaws or carry out works to improve the management of access land. Wardens can also be appointed to assist landowners and the public by ensuring compliance with byelaws and exclusions, and by offering advice and assistance.

There are a number of reasons why access may be restricted from some areas, and these include nature conservation concerns, heritage preservation, avoidance of fire, or other danger to the public, defence, or for activities which are incompatible with open access. Some of the restrictions are available at the request of the landowner, and others on direction from the Countryside Agency or the Secretary of State, and may be temporary or permanent. Most proposed restrictions will be subject to debate by the Local Access Fora and may be revoked or varied at intervals.

The Countryside Agency are to produce codes of conduct and other information for users and for landowners, and are also working towards the development of an national access database which will give information about the many different types of access available. Their free leaflet New Rights, New Responsibilities is Countryside Agency publication CA65 available from their publications department (Tel 01242 521381). It is not presently possible to order these leaflets online.

There are no provisions for compensation to landowners whose land becomes the subject to the right of access, but under certain circumstances, compensation my be payable for other reasons. If it is necessary to create new public rights of way to reach areas of open access, or if damage is sustained to any person in the exercise of powers conferred by the Act, there may be an entitlement to some compensation.

Public Rights of Way and Road Traffic
The major implication for public rights of way is that highway authorities are now required to produce a Rights of Way Improvement Plan for their area, taking into account the needs of the public in terms of recreation, exercise, and enjoyment of the countryside, and considering the particular needs of less able people. This needs to include a statement on how the improvements are to be secured. The plan has to be written within 5 years, and reviewed at intervals of 10 years, and a prescribed consultation process has to be followed.

Another significant implication of the Act is that the Definitive Map is to be closed to claims for historical rights of way in 2026, requiring extensive research to be undertaken in the meantime to ensure that highway rights are not inadvertently lost.

Any authority which has not completed the review of Roads Used as Public Paths will now be able to re-classify them automatically as Restricted Byways, which will be available for use on foot, horseback, cycle and non-motorised vehicles.

Diversions and extinguishments of paths will be made possible in a number of circumstances; for example to protect SSSIs, for the protection of schools and for safety in certain areas, and landowners will have the right to apply for an order. They will also be able to make temporary diversions of paths in order to carry out certain works, and it will also be possible to make Traffic Regulation Orders for nature conservation purposes.

Authorities will need to take into account the needs of less able people when authorising stiles and gates to allow easier access. Measures to make prosecution for various obstructions easier and more effective are also included, together with provisions for allowing the public to serve notice on the local authority for failing to take appropriate action.

Offences relating to the mis-use of public rights of way by vehicles are addressed, as is the question of vehicular use over registered common land.

Nature Conservation
The importance of biodiversity conservation is given a statutory basis, requiring government departments to have regard for biodiversity in carrying out its functions, and to take positive steps to further the conservation of listed species and habitats.

The protection of SSSIs is strengthened giving greater power to English Nature to enter into management agreements, to refuse consent for damaging operations, and to take action where damage is being caused through neglect or inappropriate management.

Local Authorities will have a statutory duty to further the conservation and enhancement of SSSIs both in carrying out their operations, and in exercising their decision making functions.

The Act seeks to strengthen legal protection for threatened species and brings up to date the Wildlife and Countryside Act 1981. This will assist in bringing offenders to justice, and provide for stronger penalties.

Areas of Outstanding Natural Beauty
The Act clarifies the procedure and purpose of designating AONBs, which was originally set out in the National Parks and Access to the Countryside Act 1949, and amended in the Environment Act 1995, resulting in a degree of fragmentation. The consolidation of these provisions improves its effectiveness and its impact.

The Act requires local authorities in whose areas AONBs are located to prepare and publish a management plan for the area. If one already exists, the local authority may decide whether to review and adopt an existing one, or to produce a new one of their own. This procedure must result in a plan being adopted as a statutory plan by 31st March 2004. Extensive consultation as set out in the Act must be undertaken, and once published, the Plan must be reviewed every five years.

Local authorities, Ministers of the Crown, Public bodies (such as government agencies), statutory bodies and any person holding public office will also have a duty to have regard to the purpose of conserving and enhancing the natural beauty of the AONB in exercising or performing their functions.

Provision is made in the Act for larger AONBs, covering several local authority areas, to apply to the Secretary of State for permission to set up a Conservation Board to manage the AONB, taking over certain agreed functions from the local authorities. The funding for such bodies would come from a combination of places, including the Secretary of State, the Countryside Agency and the constituent local authorities.

Miscellaneous Provisions
This part of the Act sets out the requirement for highway authorities and National Park Authorities to set up and run Local Access Forums (or more strictly Fora). The duty to do this will not arise until the regulations setting out the constitution and functions of these fora, which should be later this year, but the bodies set up will then be statutory consultees for a variety of purposes set out elsewhere in the Act.

The Act amends the Wildlife and Countryside Act 1981 to enable management agreements to be entered into by a wider number of authorities (eg. The new Conservation Boards) and in respect of any land, whether or not it is in the countryside.

The remaining provisions clarify the situation of the Norfolk and Suffolk Broads and the Scilly Isles, and also the position of Village Greens in terms of the registration of Common Land.

There are 14 Schedules which form part of the Act and which regulate the manner in which it is applied, and, as stated before, a number of regulations have yet to be made which enable further provisions to take effect.

Financial Implications
The government undertook a financial study, called a regulatory impact assessment, to determine the likely cost of implementing the provisions of the Act. With respect to the local authority responsibilities, the cost of implementing the rights of way duties has resulted in an increase in the Standard Spending Assessment of the Council as a whole. For AONBs, the cost of producing a management plan has been evaluated, and the extra funding allocated to the Countryside Agency, for distribution to AONBs. The amount is given as an extra £1m each year for the next three years. This is in addition to the extra money that has already been made available to the Agency in respect of AONBs, making a total, nationally, of £7.4m, £7.9m £8.4m in the next three years respectively. This is not all related to the passing of the Act, but a general increase in available money for AONBs as part of the governments policy of raising the profile and status of AONBs.

The Regulatory Impact Assessment for the Biodiversity provisions of the Act can be found here.

The open access provisions officially have no financial implications for local authorities, other than the setting up and operating of Local Access Fora, and this has been assessed nationally as requiring additional expenditure of £0.4m, £1m and £2m over the next three years. The responsibilities in relation to part III of the Act, relating to Nature Conservation and Wildlife Protection, fall to English Nature (in England) and the funding is therefore directed to them.